Saturday
06Feb2010

How do I prove I did not commit a willful misrepresentation?

DateSaturday, February 6, 2010 at 3:18PM

QUESTION: I received a non-immigrant visa 1.5 years after my father filed a Form I-130 on my behalf.  I didn't know that he filed the I-130 and didn't mention it in DS-156.  Will I be found ineligible at the immigrant visa interview? How do I prove that it was not willful misrepresentation?  

REPLY: There is a chance that you could be found to have committed a misrepresentation at your immigrant visa interview.  In order to avoid a charge of inadmissibility due to this misrepresentation pursuant to INA Section 212(a)(6)(C)(i) [which carries a lifetime bar to admission to the U.S.], you must prove to the satisfaction of the Consular officer that you did not know about your father’s filing Form I-130 at the time of your nonimmigrant visa application and interview. 

It is extremely difficult to overcome a charge of inadmissibility that is lodged by a Consular officer, as their actions are for the most part unreviewable.  For this reason, you will want to have extensive proof and supporting documentation prepared in advance of your interview to show the Consular officer that you really did not know about the pending I-130 during the nonimmigrant visa process.  With a well-prepared package, you should be able to avoid any negative charges.  

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AuthorSarah E. Murphy, Esq. | | Print ArticlePrint Article |
Thursday
28Jan2010

What types of reasons for seeking entry to the U.S. will support a Form I-192 waiver application?

DateThursday, January 28, 2010 at 11:56AM

QUESTION: I am in the process of applying for my renewal application for I-192.  I was convicted of assault when I was 18 years old (16 years ago).  I was approved for my first waiver 5 years ago and it is up for renewal - I was told to write a statement regarding the purpose of my intended activities in the US and anything else that might help the approval.  My mother lives in the US but I don't feel that just that point is substantial enough to have my renewal approved.  Is there anything that the CBP look for that helps advance the approval process and strengthen my request or is my mother substantial enough to have it approved?

REPLY:  Nonimmigrant waivers pursuant to INA § 212(d)(3) [which Canadian citizens apply for by submitting Form I-192] are adjudicated based upon a legal standard set forth by the Board of Immigration Appeals (“BIA”) in a landmark case known as Matter of Hranka.  In that case, the BIA set forth three (3) factors that must be considered when adjudicating these nonimmigrant waiver applications [I-192].  These factors are:

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AuthorSarah E. Murphy, Esq. | in , , , , | | Print ArticlePrint Article |
Monday
18Jan2010

Has my conviction been properly classified as a crime involving moral turpitude?

DateMonday, January 18, 2010 at 12:43PM

QUESTION:  In 2000 I was convicted by U.S. federal court of 1 count of "false statement" to a U.S. Customs officer and was fined $500 USD.

The false statement was in regard to a car I sold in the U.S.  Upon entering the U.S., I said that my purpose for entering was pleasure and in reality I entered to sell my car in the U.S.

The car was a U.S. made model and no taxes or duty were imposed if I were to declare it.  By not declaring, I saved 30 days needed for the car to clear "Registered Importer."  No money was lost by the U.S government.  All I gained by failing to declare was time. 

From 2000 to 2007 I entered the U.S. frequently after declaring the $500 fine by the U.S federal court.  At one point my file was reviewed by a supervisor that determined that it is not a crime of moral turpitude.

In 2007, I was denied entry for the same offense.  The officers determined that the offense was a crime of moral turpitude.  I was told to get a waiver.  I did apply for a waiver and was granted a 1 year waiver.  Upon my second application for the waiver in December 2009 I came across some information online that suggests my offense does not involve moral turpitude.  The information I found was issued by the U.S. Department of State in its Foreign Affairs Manual, which stated that violations of laws which are regulatory in character and which do not involve the element of fraud, including “false statements”, are not crimes of moral turpitude.

My second waiver application is pending and in my opinion I should not require a waiver since my online research indicates that mine is not a crime involving moral turpitude.  What is your legal opinion?  What should I do if you agree with me?   

 

REPLY:  You are in an unfortunate situation that involves one of the more complicated areas of the immigration law – the definition of “crime involving moral turpitude” (“CIMT”).  Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”) provides that anyone who has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime, is inadmissible to the United States.  The term “crime involving moral turpitude” is not defined anywhere in the INA.  Rather, the term has been defined by a series of decisions issued by the Board of Immigration Appeals and the federal courts.  As you noted above, the Department of State has also issued guidance to its employees regarding the definition of a CIMT in the Foreign Affairs Manual.

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AuthorSarah E. Murphy, Esq. | in , , , , , | | Print ArticlePrint Article |
Friday
15Jan2010

Can U.S. Customs and Border Protection Charge Me With Additional Grounds of Inadmissibility When Adjudicating My I-192 Waiver?

DateFriday, January 15, 2010 at 6:29PM

QUESTION:  I entered the U.S. as a visitor in 1997 and then overstayed my authorized period of stay for 3 years.  I then departed the U.S. and applied for another visitor visa in 2003 at a U.S. Consulate abroad.  The Consulate approved my visa application and I traveled to the U.S. with no problems until 2004 when I was told that I was inadmissible for a period of 10 years due to my previous overstay.  I was told that I was inadmissible for a period of 10 years under INA Section 212(a)(9)(B)(i)(II) for unlawful presence and that I needed to obtain a waiver.  Since I had become a U.S. citizen, I was told to apply for the waiver by filing Form I-192 with Customs and Border Protection officials.  I filed Form I-192 on my own, without a lawyer, and it was approved.  The waiver, however, says that I am inadmissible under INA Section 212(a)(6)(C)(i) as well as 212(a)(9)(B)(i)(II).  I later learned that Section 212(a)(6)(C)(i) is a lifetime bar for fraud.  Can Customs and Border Protection officials bar me for life even though a fraud charge even though this has never come up before?

REPLY:  In short, yes, U.S. Customs and Border Protection (“CBP”) officials can charge you as inadmissible at any time so long as there are sufficient facts to support the charge. 

You are definitely in a difficult U.S. immigration situation.  While I cannot provide you with a complete professional analysis without more research and investigation into your particular case, I have provided you with my preliminary analysis based upon the information you provided below.

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AuthorSarah E. Murphy, Esq. | in , , , , | | Print ArticlePrint Article |
Monday
11Jan2010

Can a Waiver be Obtained for a False Claim to U.S. Citizenship? 

DateMonday, January 11, 2010 at 6:36PM

QUESTION:  I was charged with false claim to U.S. citizenship almost 6 years ago.  Is it possible to get a nonimmigrant waiver of this ground of inadmissibility? 

REPLY:  You can certainly apply for a nonimmigrant waiver to the U.S. pursuant to INA § 212(d)(3).  This section of law will waive inadmissibility under INA § 212(a)(6)(C)(ii) for a false claim to U.S. citizenship.  Whether you have a strong case for a nonimmigrant waiver under § 212(d)(3), however, is a different inquiry altogether. 

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AuthorSarah E. Murphy, Esq. | in , , , | | Print ArticlePrint Article |
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